Purporting to prohibit lawyers from engaging in harassing or discriminatory conduct, the new, vague, and over broad ABA Model Rule 8.4(g) would have chilled free speech; weaponized lawyer discipline; and infringed on lawyers’ free exercise rights.

Surprise, surprise, surprise!

As it happens, though, another state beat Nevada to the punch. In August, Vermont surprised a lot of people — not the least being Vermont lawyers — to become the first and so far, the only jurisdiction to adopt the ABA’s suggested model rule.

Noting how there were “zero public comments submitted,”law professor Josh Blackman wrote on his blog, “The bar counsel for the state’s professional responsibility program boasted,“So as you can see, this rule obviously had a lot of support.”

Opposition in Nevada

As for Nevada, acknowledging that “many comments were filed in opposition . . . that caused the Board to pause,” the Nevada Bar backed off its rule change petition in a letter to the state high court declaring “it prudent to retract.” Just the same, in what seems little more than face-saving, the Board also expressed its “reservation to refile” if and when supposed inconsistent language in other jurisdictions is sorted out. That all this so-called inconsistency in other jurisdictions was already well-known is, of course, unmentioned. Every jurisdiction, after all, is free to adopt its own professional conduct rules.

It’s also worthy of note that though the court twice extended the public comment period, no comments were ever filed in favor of the Bar’s petition. All comments filed were opposed. The Board’s request was granted September 25, 2017.

So Vermont notwithstanding, the proposal has to date continued facing strong opposition not just in Nevada but elsewhere. The key is lawyers being adequately informed about it. What has to be overcome are the preferences of mandatory bar majordomos inclined toward the enactment of onerous initiatives as fait accompli with little preceding notice, detection or commotion. But when lawyers are told and widely noticed the opportunity to comment, legal elites have problems flying their officious meddling under-the-radar.

The rule is currently under review in Utah but has encountered powerful headwinds there, too. It is opposed in Idaho. And in Arizona, opponents are galvanized to fight an ABA Model Rule 8.4(g) petition queued up for January 2018.

If you’re like me, at least once in your life you’ve received a mailed “Notice of Proposed Class Action Settlement.” In many instances, you aren’t required to do anything to get the so-called ‘benefits’ of the class action settlement.

However, as a bar-card carrying member of the tribe, I read the notice legalese, especially the part about how much the class action lawyers are getting paid.

Let me never be one to begrudge a lawyer’s payday — so long as the plaintiffs get genuine value consistent with the lawyers’ time and risk. Unfortunately, I’ve yet to receive a notice where the proposed remedy has been worth more than John Garner’s“bucket of warm spit.”

The reality is that too often, the class actions aren’t sensible. They don’t fix real client problems. And they don’t provide meaningful value. Indeed, the only ones making out are the lawyers.

The foot-long.

The rules judges and lawyers follow are supposed to govern the class action system. These rulessay a class action settlement may not be approved unless it’s “fair, reasonable, and adequate.”

In view of my own spittoon kicking experiences, I was happy to hear those rules were getting enforced thanks to last Friday’s 7th Circuit Appeals Court Opinion torpedoing the class action lawyers in the case of the foot-long Subway sandwich that wasn’t. In the wordsof Appeals Court Judge Diane Sykes, “Because the settlement yields fees for class counsel and “zero benefits for the class,” the class should not have been certified and the settlement should not have been approved.” The lower court was reversed.

The sub squabble sprang from a 2013 Facebook post by Australian Matt Corby whose tape measure indicated his Subway sandwich fell short of a foot-long. That was enough to get the class action bar interested. Or as the Court put it, “It went viral. Class-action litigation soon followed.”

Judge Sykes added, “In their haste to file suit, however, the lawyers neglected to consider whether the claims had any merit. They did not. Early discovery established that Subway’s unbaked bread sticks are uniform, and the baked rolls rarely fall short of 12 inches.”

For claimants’ counsel, however, no matter if there hadn’t been a compensable injury. They sandwiched in another claim instead — one for injunctive relief. And so they reached a settlement approved by the lower court.

In sum, the settlement required Subway’s 4-year implementation of steps to ensure as much as practicable that its foot-longs be at least a foot-long while at the same time acknowledging that notwithstanding such steps, chances were that natural baking variability would make such uniformity unattainable.

Citing Walgreen, the Court reversed. “A class action that “seeks only worthless benefits for the class” and “yields [only] fees for class counsel” is “no better than a racket” and “should be dismissed out of hand.” Id. at 724. That’s an apt description of this case.”

In an interview Friday, Theodore Frank declared, “It’s a great win for us and it’s an important principle that lawyers can’t bring class actions just to benefit themselves. They have actual duties to class members and when they structure litigation and settlements without any benefit to the class, courts shouldn’t tolerate that.” See “7th Circuit Says ‘Utterly Worthless’ Subway Footlong Settlement Has No Meat.”

Known unknowns.

While not rising to the level of a Yogi Berra malapropism, this past week also found me reflecting on another almost ‘Yogi-ism.’ It was former Defense SecretaryDon Rumsfeld’smemorable obviousness:

“There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don’t know. But there are also unknown unknowns. There are things we don’t know we don’t know.”

I thought of Rumsfeld when courtesy of our friendly state bar’s press office, I learned that a young lawyer had just been disbarred. He’d been practicing all of 6 years. What a lot of toil and treasure wasted I thought — hardly time to get an ROI.

I never met the lawyer. But I do know he was active on social media, seemingly the consummate modern-day lawyer marketer. He even officed in his own name-identified building.

There’s no point mentioning his name or discussing his case’s merits. My sole reason in raising the disbarment is that it highlights another of life’s most important truths — besides not staring at the sun. Lawyer, baker or candlestick maker, most of us don’t know as much as we think we do.

It’s an unfortunate truth that tends to be ignored, especially among some of the legal profession’s newest practitioners. Faced with paying down horrendous tuition loans, circumspection becomes an unaffordable luxury. And having survived law school and passed the bar exam, too many lawyers suffer from illusory superiority.

About the same time I read about the disbarment, the article,“Common Mistakes When Starting a Law Practice” arrived in my inbox. Disbarment wasn’t listed as one of the “common mistakes.” Overspending, incompetency and several others were. But since suspension and disbarment are always possible consequences of going it alone, mentioning those sanctions was perhaps deemed superfluous.

However, what I did think deserved mentioning but wasn’t was Rumsfeld’s succinct knowledge-gap admonition, “There are things we don’t know we don’t know.”

Wordsworth decried “getting and spending,” calling it “a sordid boon”that lays waste to our self and clouds our wonder of the physical world. “We have given our hearts away”he complains in “The World Is Too Much with Us.”

I memorized that poem in college. And I still find more encouragement in that English Romantic’s bleak sonnet than in the dark comedy I saw last weekend that traipses across similar anti-materialism terrain.

As the credits rolled up at the end of Beatriz at Dinner, I didn’t know whether to run or reach for a razor blade. “Critical praise = a depressing movie,” I once declared. Well this riff on healing vs. destroying called Beatriz at Dinnerhas been heaped with critical praise. Quick, pass the critics their Prozac.

Led by Salma Hayek, Connie Britton and John Lithgow, the cast is admittedly praiseworthy. Even the minor characters are uniformly excellent although I do tire of the trope of the ethically challenged attorney that always predictably pops up in tales of depraved material excess. This time, the lawyer is Alex played by Jay Duplass who finagles a real estate deal for mega-rich property developer Doug Strutt played by the uber-talented Lithgow.

But the good gal vs. bad guys story with Hayek as the Mexican immigrant and empathetic earth mother massage-therapy-healing Beatriz — contradictorily massages the message right out of you. I doubt that’s what the writer or the director intended.

Indeed, I think Beatriz at Dinner is meant as a sociopolitical commentary on class division and healing not hurting. One commentator even sees it as a take on innocuous questions that he calls a “gateway to casual racism.” While that commentator makes some telling points about hypocrisy, false perceptions, and how “wealth and status don’t overpower racial discrimination,” he’s too overwrought for my taste. See “Why Dark Comedy ‘Beatriz at Dinner’ Is So Cathartic for POC Audiences.” [To my insurance defense lawyers, POC here does not mean proof of claim but people of color. Who knew?]

Years ago, I had a guy try to hand me the keys to his Beemer in front of a tony Ritz-Carlton. Had I not been running late to a meeting in the hotel, I might have simply said thanks and left him with his mouth open when instead of parking the sports car like he mistakenly assumed, I’d have peeled rubber down the Coast Highway on a fast spin. And besides, these days who really thinks wealth and status don’t overpower grace and manners? Money still doesn’t buy class.

No spoiler alert necessary here. But I disagree further with the aforementioned commentator who additionally opines that the film indicts “white supremacy.” At the same time, he also asserts that this implausiblesapo-de-otro-pozo [frog from the other well] story is “empowering.” It’s empowering alright — but only if by that you mean knowing how your story is going to end.

This weekend, on the other hand, I saw The BigSick. It’s also a film about cultural differences. It relates the real life courtship of Kumail Nanjiani and his now-wife, Emily Gordon. But by contrast to Beatriz, it’s indeed a comedy. It’s full of pathos, humor, and romance. There’s terrific acting, too, by Kumail Nanjiani, Zoe Kazan and the actress that never disappoints, the inimitable Holly Hunter.

And no lawyers or the profession’s reputation were harmed in the making of this movie. In fact, there are no lawyers in it.

The movie is fun, funny and in point of fact empowering of the spirit. Moreover, unlike Beatriz at Dinner, you feel good walking out of the cineplex.

On Monday, the U.S. Supreme Court unanimously ruled that government, in this instance, the U.S. Patent and Trademark Office (PTO) may not refuse to register potentially offensive names under a law against registering trademarks likely to disparage people or groups.

The Nevada Bar, for one, has petitioned its state supreme court to adopt a new lawyer speech code to punish Nevada attorneys for what newly weaponized lawyer disciplinary authorities subjectively deem “derogatory,”“demeaning,” or “harmful” speech“related to the practice of law.” Matal v. Tam renders the viewpoint discrimination enshrined by such a proposed rule presumptively unconstitutional.

Nonetheless, how much ultimate weight state supreme courts give to Matal v. Tam on such matters will depend on the jurists’ ability to temper the agenda-driven viewpoint of lawyersas sui generis ‘special snowflakes.’ Under this rubric, lawyers are expected to unreservedly pay for their ‘privilege’ with constraints on their Constitutional rights not visited upon any other profession.

In 2011, Simon Tam, the founding member of the Asian-American dance-rock band, The Slants, tried to register the band’s name with the PTO. His application was denied based on a federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.”15 U. S. C. §1052(a).

Tam characterized his trademark registration as an attempt to reclaim a slur and use it as “a badge of pride.” Associate Justice Samuel Alito wrote, “We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

Student free speech.

Writing today at “The Legal Watchdog,”notable Wisconsin defense attorney Michael Cicchini trenchantly points out at “Free speech: A message for public universities (and their students)“ how Matal v. Tam should help curb free speech constraints currently the rage among do-gooding bureaucrats at public universities. Quoting from the opinion, Cicchini illustrates how “There is no hate-speech exception to the FirstAmendment;”“You can’t suppress speech you don’t agree with;” and “You should be thankful that you can’t suppress speech you don’t agree with.” His entire post bears reading.

Photo credits: Seal of the U.S. Supreme Court, by DonkeyHotey at Flickr Attribution; “sad emoticon,” by shamaasa at Flickr Attribution; “Resusci-Annie’s Children Remark On the Effectiveness of the First Amendment,” by John Scalzi at Flickr Attribution.

Whether or not you believe in clairvoyance, you don’t need psychic powers to foresee that state bars without fail welcome their own collisions with the liberty interests of their members. It’s integral to the “do-gooder” mentality endemic among the “moral busybodies” running state bar associations.

“Those who torment us for our own good,” said C.S. Lewis, “will torment us without end for they do so with the approval of their own conscience.”

Do-gooders.

The latest do-gooder intrusion comes from a surprising quarter, the State Bar of Nevada. At one time, the Nevada Bar could be characterized by a laissez-faire attitude consistent with Nevadans’ strong independent, libertarian streak. But oh, how times have changed.

Last year, in a misguided effort grounded on anecdotal conjecture about supposed prevalent substance abuse and mental health problems among Nevada’s lawyers, Nevada’s Bar Governors petitioned the high court for another mandatory hour of annual continuing legal education in substance abuse prevention and mental health.

Continuing legal education has never been proven it makes lawyers more competent or ethical. Just the same, the Nevada Bar thought an hour of mandatory substance abuse/mental health CLE would help make lawyers abstemious and healthy-minded.

And not satisfied with only that moral meddlesomeness, the board next appointed a task force to study whether Nevada lawyers should pay more to practice by following the Oregon Bar’s improvident model of forced professional liability insurance. Oregon’s insurance mandate currently compels lawyers to pay a hefty $3,500.00 annually for the merest nominal coverage.

At “Revenge of the Do-Gooder” in The American Thinker, Scott Boerman explained what animates the do-gooder is “a great desire to cure humanity’s ills and imperfections with solutions that invariably focus on controlling other people’s property and productivity. Not to be confused with real volunteers and philanthropists — who use their own skills and wealth to directly help a favored cause — the do-gooder uses only his brain to decide precisely what everyone else what should do with their abilities and wealth. And because the do-gooder is so confident that his plans are good for humanity, he strives to impose his will with a stick, be it regulatory, monetary, or via public brow-beating.”

An unconstitutional speech code.

Nevada’s Bar, however, may have finally reached the apex of do-gooding thanks to a petition filed May 8th asking the state supreme court to adopt the new ABA Model Rule 8.4(g) which amends Nevada Rule 8.4 by adding an entirely new subsection (g). It reads:

It is professional misconduct for a lawyer to: . . . (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

Academics like UCLA Law Professor Eugene Volokhand South Texas College of Law Professor Josh Blackman have weighed in against the proposed rule on constitutional grounds. The Attorneys General of Texas and South Carolina have also officially opined that a court would likely conclude ABA Model Rule 8.4(g) not only amounts to an unconstitutional restriction on the free speech, free exercise of religion, and freedom of association of attorneys but it’s also unconstitutionally overbroad and void for vagueness. SeeOpinion No. KP-0123, Attorney General of Texas and 14 South Carolina Attorney General Opinion.

Other commentators contend that by only proscribing speech that is derogatory, demeaning, or harmful toward members of certain designated classes, the Rule is an unconstitutional content-based speech restriction. Others argue attorney conscience rights are also adversely implicated.

Professor Blackman further raises separation of powers problems when bar disciplinary authorities lacking the “boundless discretion over all aspects of an attorney’s life”nevertheless attempt to regulate conduct beyond their legal power or authority.

More bar complaints.

But the real upshot is heightened lawyer liability when state bar disciplinary police are given unprecedented new powers to punish lawyers for conduct not directly connected with what ethical rule 8.4 already prohibits, which is misconduct while representing a client or implicating fitness to practice or prejudicing the administration of justice. The new rule enlarges the scope to include social conferences, bar association activities and private speech far removed from providing actual legal services.

As Professor Blackman further wrote in The Georgetown Journal of Legal Ethics about Model Rule 8.4(g):

“Lectures and debates hosted by bar associations that offer Continuing Legal Education (CLE) credits are necessarily held “in connection with the practice oflaw.” Lawyers are required to attend such classes to maintain their law licenses. Itis not difficult to imagine how certain topics could reasonably be found byattendees to be “derogatory or demeaning” on the basis of one of the eleven protected classes in Rule 8.4(g).

Blackman lists sample topics chosen as he says for their “deliberate provocativeness” where a lawyer attendee might subject herself to discipline since the speaker “reasonably should know” that someone at the event could find the remarks disparaging towards one of the eleven protected groups.” Here are a few:

“● Race—A speaker discusses “mismatch theory,” and contends that race based affirmative action should be banned because it hurts minority students by placing them in education settings where they have a lower chance of success. ● Gender—A speaker argues that women should not be eligible for combat duty in the military, and should continue to be excluded from the selective service requirements. ● Religion—A speaker states that the owners of a for-profit corporation who request a religious exemption from the contraceptive mandate are bigoted and misogynistic. ● National Origin—A speaker contends that the plenary power doctrine permits the government to exclude aliens from certain countries that are deemed dangerous. ● Ethnicity—A speaker states that Korematsu v. United States sas correctly decided, and that during times of war, the President should be able to exclude individuals based on their ethnicity. ● Sexual Orientation—A speaker contends that Obergefell v. Hodges was incorrectly decided, and that the Fourteenth Amendment does not prohibit classifications on the basis of sexual orientation.”

All of which means an amended Nevada Rule 8.4 will unwisely empower a mandatory bar to extend existing lawyer First Amendment encroachmentsupon new terrains of unconstitutional discipline.

Longtime readers know I like movies. They’re fun as a stand-alone proposition.

But movie-going is almost essential when Arizona’s solar-intensifying sprummer has come, gone, and Satan’s excessive heat warning says it’s 109 outside. Overnight it ‘cools down’ to the high 90’s.

So when outdoor activity partners with heat stroke, getting out often means movies. This weekend, it was Wonder Woman — highly enjoyable and big fun. Although I enjoy all genres, there’s nothing like a well done action film.

As some of you know, I’ve also seen my share of movies featuring lawyer protagonists. Admittedly, it’s been a while since there was one I liked. The Lincoln Lawyer is perhaps the last one I thought entertaining — but that was 6 years ago.

It’s not like I rush to see movies featuring lawyers. Quite the opposite. I think most are to be avoided. 2014’s The Judge was awful.

Nearly always they get the law and the ethics wrong. For instance, I missed last year’s The Whole Truth, starring that latter-day Olivier, the wooden thespian known as Keanu Reeves. I’m sorry to say I finally caught it online.

Of The Whole Truth, movie critic Rex Reed said,“A guaranteed cure for insomnia, an abomination called The Whole Truth is a courtroom movie that looks like a colorized version of an old Perry Mason TV show, starring Renée Zellweger’s new face and Keanu Reeves, who has the charisma and animated visual appeal of a mud fence.”Keanu plays that over-used movie stereotype, the ethically challenged criminal defense lawyer.

And why always an ethically challenged defense lawyer? Why not an amoral ERISA or corrupt water rights lawyer? In truth it’s probably because ERISA and water rights lawyers would have to arm-wrestle to avoid the title of most boring field of practice.

In any event, Keanu’s much better as pup-loving legendary hitman John Wicknot as a lawyer. Just the same, I admit to liking his turn as the lawyer son of Satan in The Devil’s Advocate.

It’s true. Recliners have arrived at the cineplex, including the one in our neighborhood. I’m not sure, however, that Wonder Woman was better because my feet were up. The Whole Truth, on the other hand, is a different matter. The recliner would’ve meant In dormis delicto.